Marijuana Policy: Who Should Decide?

When most people frame the debate about regulating marijuana for recreational or medical use, they only consider two options: legalize the drug or ban it. But Robert Mikos, professor of law at Vanderbilt Law School, argued this week that there are actually a variety of options between the two extremes. At a Notre Dame Law School forum, he questioned evaluating the stigma and punishment doled out to low-level marijuana users and expanding the types of conditions permitted for medical use.

“Almost every state that has legalized the drug for medical purposes allows people who are suffering from cancer to use marijuana to treat certain conditions like wasting syndrome, loss of appetite, or the nausea that’s associated with chemotherapy. “Everybody agrees about that but there are only about five of the 25 states that have legalized the drug for medical purposes that allow people to use it to treat PDS, post-traumatic stress disorder. There’s lots of disagreement about the particular conditions that are going to be covered by the medical marijuana regime.”

As the number of states willing to legalize the use of marijuana for either recreational or medical use seems to be growing, Mikos discussed whether laws regarding the use and distribution of marijuana should be created and regulated by state and local governments or handled at the federal level.

“There is so much activity going on right now; so much variation from one state to the next,” Mikos said. “You have a lot of different policy options on the table. Who gets to decide among them?”

Mikos is one of the nation’s leading experts on federalism and drug law. His most recent writing, Marijuana Localism, analyzed the struggle among federal, state and local governments for control of marijuana law and policy.

”Ultimately it makes sense to consolidate the power over marijuana back into the hands of the federal government and in particular into the hands of Congress,” Mikos said.

Because varying jurisdictions have different laws regulating marijuana use and distribution, states that have legalized the substance aren’t going to solely reap the benefits nor incur all of the cost associated with its legalization.

“Neighboring states, even some states far away, are going to bare the cost of marijuana sales from [where it’s legal],” Mikos said. “Last year alone, in 2014, the state estimates Colorado licensed vendors sold about 10 tons of legal marijuana to out-of-staters.”

The problem Mikos pointed out with the current a-la-carte system is that that local jurisdictions, especially cities but also states, aren’t equipped to deal with these externalities easily.

During a recent interview with NBC News Host, Chuck Todd, U.S. Attorney General Loretta Lynch shared a completely opposite position on the issue.

“States have to make those decisions on their own,” Lynch said. “They listen to their citizens and they take actions. What we have said and what we continue to say is that states have to also have a system designed to, number one, mitigate violence associated with their marijuana industries. And number two, and perhaps most importantly, keep young people, children away from the products.”

Mikos’ other argument for situating authority over marijuana at the federal level is expertise, particularly of the Drug Enforcement Agency.

“The DEA may not have made great decisions in the past but they have more expertise, more knowledge, more capacity to make good decisions about a drug like marijuana, its harms and its benefits, than does the local city council or even a state legislature,” he said.

With Congress’ current reputation of being completely polarized and getting almost nothing done, students questioned Mikos’ rational for arguing members of Congress should be the decision makers.

“I think Congress can do a much better job of considering all the different criteria that we might consider when we’re deciding whether or not to legalize marijuana,” he said. He said Congress has the ability to consider liberty and freedom as well as their ability to formulate policy into their decision-making.

The American Constitution Society for Law and Policy organized Mikos’ visit to Notre Dame. ACS is made up of law students, lawyers, scholars, judges, policymakers, activists and other individuals who work to ensure that the fundamental principles of human dignity, individual rights and liberties, genuine equality, and access to justice are central in American law.